May 2010

05/18/2010

Radio Health Journal has a series of interesting interviews with Kent Kiehl, Stephen Morse, and others concerning psychopathy, neuroscience, and the law. Go here to listen to the recording (beginning at the 2 minute mark).

In Graham v. Florida, the Court stated that the Eighth Amendment's ban on cruel and unusual punishment is violated by a life-without-parole sentence for a juvenile whose crime did not involve murder. The opinion does allow very long sentences and only prohibits a decision by the court at the outset that a juvenile will never be fit to rejoin society. All that is required is that a juvenile, when sentenced, must have "some realistic opportunity to obtain release" before the individual's life ends. What the offender must show to obtain release, according to the opinion, is "demonstrated maturity and rehabilitation."

In United States v. Comstock the Court upheld a law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date theinmate otherwise would be released under a criminal sentence.

Elena Kagan argued, on behalf of the United States, that the Federal government has the power to indefinitely detain sexually violent prisoners following a criminal sentence. She told the court, "[the Federal government] knows that those persons, released, will commit serious sexual offenses."

Justice Sotomayor asked, at oral argument, "what constrains the government from invoking a dangerousness merely because someone has a long history. We have many criminal defendants with long histories of violent behavior. Many of them continue that violent behavior in prison and some of them at the end of their term are let out, because their term has been completed."

Kagan answered that sexually violent predators are not just dangerous but also mentally ill. She compared them to prisoners who have "a very contagious form of drug-resistant tuberculosis that had -- had become prevalent in the prison system, and States were not able to deal with that, with quarantining these people upon their release date."

Of interest in oral argument was the fact that the Federal government has 15,000 prisoners who have committed a sexually violent crime. Of those, the government has only certified 102 as "mentally ill" andtherefore subject to indefinite detention.

Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. In The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726) we proposed a new explanation for these unexpectedly high levels of agreement.

Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of our views, to which we reply here. Our reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment.

U.S. courts have recently begun to consider accepting evidence whether a witness is lying in the form of scientific conclusions drawn on data gathered from functional magnetic resonance imaging (fMRI). This article discusses fundamental fMRI-based research techniques from a scientific basis and applies them to the current jurisprudence of U.S. federal courts. It argues that much of the generally-agreed knowledge in cognitive neuroscience pertinent to neuroimaging-based lie detection does not allow a court to reach the conclusion that evidence is more probative than prejudicial. First, a witness/test-taker can manipulate the outcome of the test using countermeasures. Second, the test administrator can manipulate the outcome of the test using tactical research decisions. Third, the ends of judicial efficiency are not served by allowing both proposing and opposing parties to present data that is scientifically equivocal, wasting the time of both courts and jurors.

In a second Part, this article proposes a systematic, scientific approach to the Daubert standard as interpreting Federal Rule of Evidence 702. This approach affords a thorough analysis of the phases of scientific research. Finally, we recommend that while fMRI-based lie detection is not yet ripe for adoption in the U.S. courts at the present time, such testimonial evidence may be admissible when the cognitive neuroscience of lie detection has reached the level of general acceptance such that the principles may be found in undergraduate textbooks.